Attorney Requests Ruling in S.D. Gay Marriage Case

Jennie Rosenkranz, 72, left, and Nancy Robrahn, 68, are the lead plaintiffs in the South Dakota suit. The two have taken the last name Rosenbrahn. (Source:Benjamin Brayfield/Rapid City Journal via AP)

SIOUX FALLS, S.D. - The Minneapolis attorney representing the six same-sex couples challenging South Dakota’s gay marriage ban is asking a judge to bypass a trial and issue a ruling.

Attorney Joshua Newville filed a motion for summary judgment last week in U.S. District Court in Sioux Falls. In the same memorandum, Newville responded to the state’s motion to dismiss the case. Attorney General Marty Jackley has said he’s obligated by law to defend the ban.

In May, Newville filed the federal lawsuit, which challenges a 1996 state law passed by the Legislature and a voter-approved 2006 constitutional amendment banning gay marriage. It claims three violations that are guaranteed in the 14th Amendment to the U.S. Constitution: deprivation of equal protection, due process and right to travel.

In the memorandum, Newville argues that "South Dakota’s exclusion of same-sex couples from marriage and refusal to recognize the lawful marriages of those who married in other states violate the Fourteenth Amendment and the fundamental right to travel, and Plaintiffs are entitled to summary judgment on their constitutional claims."

"We’re asking the court to say ’There’s no need for a trial on this,’ because just as a matter of law, South Dakota is in violation of our plaintiff’s rights," he said.

A move for summary judgment has been common in other states wrestling over the issue of same-sex marriage, Newville said.

The attorney has also filed a motion to bring the National Council for Lesbian Rights onto the case with him. The national legal advocacy group has worked on same-sex marriage cases in other states, and Newville said it most recently worked with the ban in Utah that the 10th U.S. Circuit Court of Appeals recently said was unconstitutional.

"I think it’s really important that we have the best legal team possible for this case," Newville said.

A federal judge has to approve the advocacy group joining the case. Newville said he didn’t expect any opposition.

In June, Newville also filed a similar lawsuit in North Dakota on behalf of seven same-sex couples. Newville’s lawsuits made North Dakota and South Dakota the last two states to have constitutional same-sex marriage bans challenged in court.

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